‘The only option’: Environment minister sued by Wilderness Society

Environment Minister Tanya Plibersek is being sued by the Wilderness Society, which accuses her of breaching federal law and her promise to halt Australia’s ongoing extinction crisis by failing to implement plans to save endangered animals, documents lodged with the Federal Court reveal.

The litigation is an escalation in antipathy between sections of the environment sector and Plibersek, who vowed three years ago when she first took on the role that in her watch there “would be no new extinctions”.

Tasmanian wedge-tailed eagles are among the animals at the heart of the court action.Credit: Alamy

But unnamed sources in the conservation movement questioned the timing of the case against Plibersek, which could impact the election campaign due to be called in coming weeks.

The Prime Minister intervened in November to scuttle hopes of delivering on Labor’s 2022 election promise to create a federal environmental watchdog agency.

Meanwhile, Prime Minister Anthony Albanese undercut her role by promising the salmon industry it would not be hit by environmental regulations, making the announcement before Plibersek made her final determination on the industry’s environmental impacts on the critically endangered Maugean skate in Macquarie Harbour, Tasmania.

Federal laws under the Environment Protection and Biodiversity Conservation (EPBC) Act mandate the environment minister to create what are known as recovery plans within three years of a species being listed as threatened.

These plans are included in the laws, ensuring that flora and fauna that need urgent help can benefit from conservation efforts, which could mean limiting development in their habitat, reducing numbers of feral species, replanting at risk species or breeding rare animals.

The Wilderness Society, which lodged the Federal Court claim, says successive environment ministers have failed to create recovery plans for hundreds of such threatened and endangered species.

There are currently 2138 plants and animals on the threatened species list – while it is difficult to calculate the exact number of outstanding recovery plans, estimates range up to 600.

“Recovery plans are legally required,” campaign manager Sam Szoke-Burke said.

“We’re going to court because Australia’s pride and joy, its diverse and world-important environment, is being trashed. Following the law should not be a high bar for government ministers.”

Since colonisation, about 100 of Australia’s unique flora and fauna species have been wiped off the planet. The rate of loss, which is as comprehensive as anywhere else on Earth, has not slowed over the past 200 years.

Plibersek said she could not comment on the case, as it is before the court.

However, speaking generally, Plibersek said she had made double the number of recovery plans than her predecessor in the portfolio, Sussan Ley, during her tenure under the Morrison government.

“We’ve doubled funding for our neglected national parks, invested a record $1.2 billion to protect and restore the Great Barrier Reef, established more Indigenous Protected Areas, and funded world-leading environmental science – from the Great Barrier Reef to Antarctica,” Plibersek said.

“We’re also investing more than half a billion dollars to save our native plants and animals from extinction.”

The Wilderness Society’s case will focus on 11 species in a test case that seeks to compel Plibersek to create plans to avoid extinction.

The species are the tree-dwelling greater gliders that live in NSW and Victoria, the long-footed potoroo, Tasmanian wedge-tailed eagles, fish species the Australian graylings, Australian lungfish, ghost bats, red goshawks, sandhill dunnarts, and four Western Australian birds Baudin’s cockatoos, Carnaby’s black cockatoos, forest red-tailed black cockatoos.

The legal action targets Plibersek as the current minister, but she is not mentioned by name and the lawsuit alleges successive environment ministers are to blame.

This means that whoever inherits the environment portfolio after the looming election will also become the subject of the Federal Court action.

Environmental Justice Australia senior lawyer Ellen Maybery said aspects of the case were “very novel”.

Portrait of a wild, threatened sandhill dunnart (Sminthopsis psammophila) from South Australia. The fate of hundreds of animals like the Sandhill Dunnart hangs in the balance. Credit: Shutterstock

“It’s the first time that we’re aware of that the court has been asked to make a mandatory injunction compelling the minister to perform their duties under the EPBC Act,” she said.

“Pursuing litigation in the courts ... is time-consuming and expensive, but I think in a case like this, where for decades concerns have been raised about missing recovery plans, it does get to the point where it does start to feel like litigation is the only option when action isn’t being taken.”

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